Quite often, people will talk about the idea of being "legally separated." Technically, under Virginia law, there really is no such thing as a legal separation. While there is such a thing as separate maintenance under Virginia law, you are legally separated for the purposes of a no-fault divorce if you are in fact physically separated (not cohabiting under the law). Second, what most people mean when they say or talk about a legal separation is that the parties enter into what is known as a separation agreement.

A separation agreement is a written contract between a husband and wife which resolves any custody, support and property issues between them. For example, a separation agreement might specify custody for the children, provide for child support, specify spousal support to be paid, if any, divide the property, and provide for the payment of debts. This agreement, sometimes called a separation agreement and sometimes called a property settlement agreement, is really just a written contract -- albeit a special one to be sure -- and is enforceable like any other contract. Typically, the separation agreement is submitted to the court as part of the divorce and the court orders it into effect. In this case way, it is more enforceable than the typical contract in that a judge can hold a breaching or defaulting party in contempt for not complying. The benefit of a separation agreement is that the parties are able to control the outcome and disposition of their marriage in a friendly, amicable, non-traumatic, and economically reasonable manner. It is clearly the best approach if done correctly and fairly.

If the parties are unable to agree on these matters then a court will decide them. Custody of children is determined by a number of statutory factors, among which are age and physical and mental condition of the children and parents; the relationship existing between each parent and each child; the needs of the child, giving due consideration to other important relationships including siblings, peers and extended family members; the role which each parent has played and will play in the future in the upbringing and care of the child, the propensity of each parent to actively support the child’s contact and relationship with the other parent; the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child; the reasonable preference of the child if the child is determined to be of reasonable intelligence, understanding, age and experience to express such a preference; any history of family abuse; and, any other factors the court deems necessary and proper.

Virginia (and to my knowledge all fifty states) has what are known as child support guidelines to assist the court in determining how much child support should be paid. In fact, under Virginia law the guidelines are presumptively correct although a judge may deviate from them under special circumstances. Essentially, the guidelines take the income from both parties, apply that income to a table organized by income and number of children, to arrive at a gross child support figure. To this number is added child care expense and health insurance. Each party then pays his or her income pro-rated portion of that child support number. If you desire to have child support calculated then we can do so at an appointment.

With respect to spousal support, the court takes the following factors into account: need and ability to pay; the standard of living established during the marriage; the duration of the marriage; the age and physical and mental conditions of the parties; the contributions monetary and non-monetary, of each party; the property interests of the parties; the provisions made with regard to equitable distribution; earning capacity (skills education and training etc.) and present employment opportunities; the opportunity to obtain the appropriate education training and employment; decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their affect on present and future earnings potential; the extent to which either party has contributed to the attainment of education training, career position or profession of the other party; and, of course, such other factors, including tax consequences, as are necessary to arrive at a just decision. Spousal support is a very unpredictable area of the law thus generalities are of no benefit here. Suffice it to say, that is something you would need to discuss with me in person after I have had the opportunity to assess all of the facts.

Virginia is what is known as an equitable distribution state. This means that the court will divide the property equitably (fairly). The first step in the process is to determine what property is marital (subject to division), and what property is separate (not subject to division). This simple proposition does not translate well in practice. Generally, separate property is property brought into the marriage and maintained separately, property acquired by inheritance or gift ( from a source other than the other party) which is kept separately, and property acquired during the marriage in exchange for, or from the proceeds of a sale of, separate property provided it is maintained separately. Basically, marital property is defined as everything that is not separate property. Once marital property is assessed then the court divides the property on "equitable" principles which include: the contributions, monetary and non-monetary, of each party to the well-being of the family; to the acquisition and care and maintenance of the marital property of the parties; the duration of the marriage; the ages and physical and mental condition of the parties; the circumstances and factors which contributed to dissolution of the marriage; how the marital property was acquired; the debts and liabilities of each spouse; the basis for such debts and liabilities; and the property which may serve as security for such debts and liabilities; the liquid or non-liquid character of all marital property; the tax consequences to each party; and, of course, such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable award. In dividing property, the court may order a monetary award to one party to equalize the distribution. There is no law which states or presumes a fifty/fifty division of property, but that is obviously quite often the result absent circumstances compelling a different result. While equitable distribution is a little more predictable than spousal support, one should nonetheless not make decisions or take actions based on the generalities of this narrative; rather, one should discuss the matter with an attorney so that he or she can assess the facts and provide an intelligent, reasoned, opinion.